Citation Nr: 0333922
Decision Date: 12/05/03 Archive Date: 12/15/03
DOCKET NO. 94-37 803 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to an increased rating for hypertension,
currently evaluated at 10 percent disabling.
2. Entitlement to an increased rating for lumbar disc
disease, evaluated at 10 percent, prior to June 5, 1997.
3. Entitlement to an increased rating for lumbar disc
disease, evaluated at 20 percent, from June 5, 1997.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Ferrandino, Counsel
INTRODUCTION
The veteran had active service from May 1958 to May 1962, a
period of ACDUTRA from September 1973 to June 1974, and
active service from May 1988 to August 1991, with additional
service in the Reserve.
This appeal comes before the Board of Veterans' Appeals
(Board) from a rating decision from the Department of
Veterans Affairs (VA) Denver, Colorado Regional Office (RO).
During the course of this appeal, the veteran has relocated
and his claim is now being handled by the Philadelphia,
Pennsylvania RO.
In October 1992, an appeal was perfected as to the issues of
entitlement to service connection for a right knee disability
and for hearing loss; however, in writing in January 1993,
the veteran withdrew his appeal as to these issues,
therefore, they are no longer on appeal.
By rating action of October 2002, the evaluation of the
veteran's service connected lumbar disc disease was increased
to 20 percent effective June 5, 1997; however, as the
increase was not effective back to the date of claim, the
issues are as listed on the title page.
Hearings were held at the RO before local hearing officers in
May 1994 and October 1995.
REMAND
In this case, the evidence is inadequate to fully evaluate
the veteran as to the service connected lumbar disc disease,
as during the course of this appeal, the rating criteria for
intervertebral disc syndrome changed. See 67 Fed. Reg.
54345-54349 (Aug. 22, 2002). The change was effective
September 23, 2002.
Additionally during the course of this appeal, the portion of
the Schedule for Rating Disabilities - Musculoskeletal System
(38 C.F.R. § 4.71a) that involves disabilities of the spine
was changed. See 68 Fed. Reg. 51454-51458 (August 27, 2003).
The change was effective September 26, 2003 and provides new
criteria for rating disorders of the spine. Additionally the
sections for consideration have been renumbered from
diagnostic codes 5235-5243. These criteria should be
considered by the RO prior to any Board decision. See
Disabled American Veterans, et al. v. Secretary of Veterans
Affairs, 327 F. 3d 1339 (Fed. Cir. 2003).
Therefore, in light of the changes to the rating criteria for
rating the spine, a new examination to fully evaluate the
service connected back disability under the old and new
regulations should be provided. Consideration of orthopedic
and neurologic findings are required.
For the issues on appeal, during the pendency of this appeal,
the Veterans Claim Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (VCAA), was signed into law.
38 U.S.C.A. § 5100 et seq. (West 2002). The provisions of
the VCAA have not been provided to the veteran specifically
as to the issues on appeal. Therefore, to fully comply with
the VCAA, on remand, the RO must assure that the provisions
of this new Act are complied with, including the notification
requirement set forth in the new law. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Finally, in a decision promulgated on September 22, 2003,
Paralyzed Veterans of America v. Secretary of Veterans
Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the United States
Court of Appeals for the Federal Circuit invalidated the 30-
day response period contained in 38 C.F.R. § 3.159(b)(1) as
inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a
conclusion similar to the one reached in Disabled American
Veterans et. al. v. Secretary of Veterans Affairs, 327 F.3d
1339, 1348 (Fed. Cir. 2003) (reviewing a related Board
regulation, 38 C.F.R. § 19.9). The court found that the 30-
day period provided in § 3.159(b)(1) to respond to a VCAA
duty to notify is misleading and detrimental to claimants
whose claims are prematurely denied short of the statutory
one-year period provided for response. Therefore, since this
case is being remanded for additional development or to cure
a procedural defect, the RO must take this opportunity to
inform the appellant that notwithstanding any information
previously provided, a full year is allowed to respond to a
VCAA notice.
Finally, by rating action of May 2001, entitlement to a total
disability rating based on individual unemployability due to
service connected disability (TDIU) was denied, with notice
to the veteran in that same month. In a statement on January
3, 2002, the veteran's representative indicated that
reconsideration of the decision that denied entitlement to
individual unemployability was requested; this can be
considered as a notice of disagreement as to this issue. The
filing of a notice of disagreement starts the appellate
process, and the claim of entitlement to TDIU must be
considered in connection with the current appeal. See
Manlincon v. West, 12 Vet. App. 238 (1999). This matter must
be remanded.
Accordingly, this matter is REMANDED to the RO for the
following:
1. The RO should send a letter to the
veteran and his representative informing
them of the pertinent provisions of the
VCAA. Specifically, it should be
indicated which of the parties is
responsible for obtaining which evidence.
The RO should provide notice that
satisfies the holdings in Quartuccio;
Paralyzed Veterans of America; Disabled
American Veterans, supra, the U.S. Code
provisions and any other applicable legal
precedents.
2. The veteran should be scheduled for
appropriate VA examination(s) to
determine the current severity of his
service connected lumbar disc disease.
Pertinent orthopedic and neurologic
findings should be recorded. The claims
file should be made available and
reviewed by the examiner(s) in connection
with the examination(s). The examiner(s)
should be furnished with a copy of the
new and old rating criteria, including
the interim criteria for rating
intervertebral disc syndrome. All
indicated special tests and studies
should be accomplished and included with
the examination report(s). The
examination report(s) must contain
sufficient clinical information so that
the Board may address each and every
criteria to be considered under the
rating criteria (as currently constituted
and as in effect prior to the recent
changes).
The examiner(s) should provide the
current diagnoses of all back disability
and indicate what is at least as likely
as not related to the service connected
disability. Additionally, the
examiner(s) should describe all vertebrae
affected by wedging, and indicate whether
an affected vertebra is at least as
likely as not related to the service
connected disability. The underlined
standard of proof should be utilized in
formulating a response. Functional
impairment should be described as should
the affect of the service connected back
disability on employability.
3. After completion of the requested
development, the RO should review the
veteran's claim on the basis of all the
evidence of record. If the action taken
remains adverse to the veteran in any
way, he and his representative should be
furnished an appropriate supplemental
statement of the case (to include the
consideration of the old and new rating
criteria for hypertension and for
diseases and injuries of the spine).
This should additionally include
consideration and a discussion of
38 C.F.R. § 3.655 if the veteran fails to
appear for a scheduled examination. In
such case, the RO should include a copy
of the notification letter in the claims
file as to the date the examination was
scheduled and the address to which
notification was sent. If the letter is
not available, personnel at the medical
center should certify to what address the
letter was sent, and should certify that
it was not returned as undeliverable.
The SSOC should additionally include a
discussion of all evidence received since
the last statement of the case was
issued. The veteran and his
representative should then be afforded an
opportunity to respond.
4. As to the disagreement with the issue
of entitlement to a total disability
rating based on individual
unemployability due to service connected
disability (TDIU), the RO should prepare
and furnish to the veteran and his
representative a Statement of the Case
and afford him the opportunity to file a
substantive appeal with regard to this
issue. To perfect an appeal a timely
substantive appeal must be filed.
Without such action, the Board does not
have jurisdiction of the issue.
Thereafter, the case should be returned to the Board, if in
order. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).